ANDERSON,
J.: The post-conviction
relief (PCR) court granted Richard C. Dalton’s (Dalton) application for relief
after finding his guilty plea was involuntary due to counsel’s failure to
interview witnesses. This court granted the State’s petition to review the PCR
court’s decision. We reverse.[1]

FACTUAL/PROCEDURAL
BACKGROUND

Dalton was indicted
for two counts of criminal sexual conduct with a minor second degree against
two step-daughters, fifteen-year-old “Child A” and thirteen-year-old “Child B.”
Respondent was represented by appointed counsel. Concerning the charge
involving Child A, Dalton pled guilty as indicted to one count of criminal
sexual conduct with a minor second-degree on July 18, 2002. He waived
presentment on the other charge involving Child B and pled guilty to one count
of lewd act on a minor. Dalton was sentenced to: (1) twenty years for criminal
sexual conduct with a minor second-degree, provided upon fifteen years the
balance would be suspended with five years probation and (2) a concurrent term
of fifteen years for lewd act on a minor.

At the guilty plea
hearing, evidence of Dalton’s guilt on the charge involving Child A was
presented. The solicitor told the judge that Child A said Dalton fondled her, had
sexual intercourse with her at least four times, and engaged in oral sex. The
judge was informed that Child B reported Dalton fondled her and made some oral
sexual contact. Dalton admitted to a Department of Social Services caseworker
that he would “eat [Child A] out,” but he denied having sex. Additionally, Dalton gave a statement to police confessing he did have sex with Child A. Dalton only disagreed with the length of time over which the events occurred.

Dalton’s counsel at
the plea hearing indicated he had explained to Dalton the charges, the possible
punishment, his constitutional rights including his right to a jury trial, and
his right to present the lewd act charge to a grand jury. Counsel said Dalton understood and wished to plead guilty. The plea court advised Dalton that by entering
a guilty plea he would give up his constitutional rights to (1) remain silent
and not be compelled to testify against himself; (2) be tried by a jury of
peers or equals to which the State would be required to prove his guilt beyond
a reasonable doubt; and (3) confront and cross-examine witnesses presented
against him as well as his right to call witnesses in his own behalf.

Regarding
the lewd act charge, the plea court explained it was not a lesser included
offense of criminal sexual conduct second degree and it had not been presented
to a grand jury. The court informed Dalton a grand jury could determine probable
cause and a trial would follow, or the grand jury could return a no bill. The
plea court asked:

Q:

Do you understand that process?

…

A:

Yes, sir.

Q:

And do you still wish to give up
your right of presentment of this charge to the Grand Jury.

A:

Yes, sir.

After
assuring Dalton understood the constitutional rights that he would be giving up
by pleading guilty, the colloquy continued as follows:

Q:

Understanding the nature of the
charges against you and the consequences of a guilty plea, how do
you plead to these charges, guilty or not guilty?

A:

Guilty.

Q:

Do you understand
that, when you plead guilty, that you will waive or give up any
possible defenses that you might have to these charges?

A:

Yes, sir.

Q:

And do you also understand that,
if you’ve given an incriminating statement in this case, that, by
pleading guilty, that you will waive or give up the right to contest
or challenge whether such a statement was freely and voluntarily
given in accordance with your constitutional rights?

A:

(Nods affirmatively.)

Q:

Did you commit these offenses?

A:

Yes, sir.

The plea court
asked Dalton whether he understood the recommended concurrent sentences were
not binding and he could be sentenced to the maximum on both charges. Dalton answered affirmatively. The court continued:

Q:

You still wish to enter your
plea of guilty?

A:

Yes, sir.

Q:

Now, Mr. Dalton, when you enter
a plea of guilty—has anyone promised you anything or threatened you
in order to get you to enter this plea of guilty?

A:

No, sir.

Q:

Are you entering this plea of
your own free will and accord?

A:

Yes, sir, I am.

Q:

Are you satisfied with the
manner in which [your counsel] has advised and represented you?

A:

Yes, sir.

Q:

Do you need any more time to
speak with him?

A:

No.

Q:

You feel that he’s done
everything for you that he could have or should have done?

A:

Well, he’s – no, not really.
I believe that he, he needs to bring up the fact that I know I’m
guilty and I admit my fault here. But I have no criminal prior
record at this, this matter. I –

Q:

He’s gonna
be able to tell me that in a few minutes.

…

Q:

What, what I’m asking you is up
until—

A:

He’s done
his, his job very well.

Q:

All right. All right.
So, you’re completely satisfied with--?

A:

Yes.

Q:

--what he’s done?

A:

Yes, sir.

Dalton’s counsel informed
the plea court Dalton intended to plead guilty to spare the victims from having
to testify. He explained Dalton’s only prior record was limited to minor
traffic offenses, and he was working and taking care of his family when charged.
The judge was told that Dalton had developed a crack habit in the time leading
up to the charges and this legal trouble was out of the ordinary for him. The
court accepted Dalton’s guilty plea, finding it was voluntarily, knowingly and
intelligently made, with the advice and counsel of a competent lawyer with whom
Dalton was satisfied.

Dalton failed to timely file and serve his prose direct appeal. On November 25, 2002, he filed an application for
post-conviction relief alleging ineffective assistance of counsel and
involuntary pleas. An evidentiary hearing was held on May 28, 2004, and relief
was granted by a written order on February 11, 2005. Dalton’s petition for
appeal bond was denied by the South Carolina Supreme Court, and the State filed
a petition for writ of certiorari. Jurisdiction was transferred to this court
on February 15, 2006.

ISSUE

Did the
PCR court err in finding that counsel was ineffective for failing to interview
witnesses when Dalton pled guilty?

Where ineffective assistance of counsel is alleged as a ground for
relief, the applicant must prove that “counsel’s conduct so undermined the
proper functioning of the adversarial process that the trial cannot be relied
upon as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 669, (1984); Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985). The
proper measure of performance is whether the attorney provided representation
within the range of competence required in criminal cases. The courts presume
that counsel rendered adequate assistance and made all significant decisions in
the exercise of reasonable professional judgment. Strickland, 466 U.S. at 690. The applicant must overcome this presumption in order to receive relief. Cherry,
300 S.C. at 118, 386 S.E.2d at 625.

A two-pronged test is used in evaluating allegations of
ineffective assistance of counsel. A PCR applicant who pleads guilty on the
advice of counsel may collaterally attack the plea only by showing that (1)
counsel was ineffective and (2) there is a reasonable probability that but for
counsel’s errors, the applicant would not have pled guilty and would have
insisted on going to trial. Roscoe v. State, 345 S.C. 16, 20, 546
S.E.2d 417, 419 (2001). When alleging that his guilty plea was induced by
ineffective assistance of counsel, an applicant must prove that counsel’s
advice was not “within the competence demanded of attorneys in criminal
cases.” Hill v. Lockhart, 474 U.S. 52, 56 (1985).

LAW/ANALYSIS

Dalton argued his guilty plea was involuntary due to trial
counsel’s failure to interview witnesses before advising him to plead guilty. In
the order granting Dalton’s application for relief, the PCR court agreed and
annunciated in its order:

Had applicant’s trial counsel consulted with the
witnesses given him by the applicant, there is reasonable probability that
results of proceedings could have been different. As argued by Applicant,
Trial Counsel’s failure to interview any of the witnesses left this Applicant
with no defense or evidence of mitigation at trial, effectively forcing him to
throw himself upon the mercy of the court.

The Court finds Trial Counsel’s argument that it was
needless to interview witnesses due to Applicant’s Statement is not
convincing. Applicant’s Statement did not address the charges comprising the
lewd act, and was less conclusive on all elements of the CSC second degree
charge. Applicant’s witness who testified at the PCR Hearing called into
question the credibility of the complaining witness and presented facts through
which impeachment might have been obtained. Her testimony also presented other
aspects of the events leading to the charges in a light substantially different
from that presented by the Solicitor. Trial Counsel argued that had he
elicited such anticipated testimony it would have served to anger the Judge.
Considering Applicant is the one who received the twenty year sentence,
Applicant should have been afforded that decision based on counsel’s informed
advice after counsel had actually heard what the witnesses had to say.

I find that Trial Counsel’s representation fell below
an objective standard of reasonableness and it is a reasonable probability that
as a result the outcome of Applicant’s court appearance would have been
different. Trial Counsel was ineffective in failing to interview defense
witnesses made known to him. Consequently, Counsel was unable to objectively
evaluate Applicant’s defense and intelligently advise Applicant. The negative
effect of counsel’s errors amounts to deficient performance which affected the
outcome of the Applicant’s court appearance.

The State contends that the PCR court
erred in granting Dalton relief. We agree.

A guilty plea is a solemn, judicial admission of the truth of the
charges against an individual; thus, a criminal inmate’s right to contest the
validity of such a plea is usually, but not invariably, foreclosed. Blackledge
v. Allison, 431 U.S. 63 (1977). Therefore, statements made during a guilty
plea should be considered conclusive unless a criminal inmate presents valid
reasons why he should be allowed to depart from the truth of his statements. Crawford
v. United States, 519 F.2d 317 (4th Cir. 1975); Edmonds v. Lewis, 546 F.2d 566 (4th Cir. 1976). An applicant may
attack the voluntary, knowing, and intelligent character of a guilty plea
entered on the advice of counsel by demonstrating that counsel’s representation
was below an objective standard of reasonableness. Porter v. State, 368
S.C. 378, 383-84, 629 S.E.2d 353, 356 (2006); Roscoe v. State, 345 S.C.
16, 20, 546 S.E.2d 417, 419 (2001). The “prejudice,” requirement focuses on
whether counsel’s constitutionally ineffective performance affected the outcome
of the plea process. Hill v. Lockhart, 474 U.S. 52, 59 (1985). In
other words, the applicant must prove prejudice by showing that, but for
counsel’s inadequacy, there is a reasonable probability he would not have
pleaded guilty and, instead, would have insisted on going to trial. Suber
v. State, 371 S.C. 554, 558, 640 S.E.2d 884, 886 (2007).

To find
a guilty plea is voluntarily and knowingly entered into, the record must
establish the defendant had a full understanding of the consequences of his
plea and the charges against him. Boykin v. Alabama, 395 U.S. 238, 242 (1969); Roddy v. State, 339 S.C. 29, 33-34, 528 S.E.2d 418, 421
(2000). “A defendant’s knowing and voluntary waiver of the constitutional
rights which accompany a guilty plea may be accomplished by colloquy between
the Court and the defendant, between the Court and defendant’s counsel, or
both.” Pittman v. State, 337 S.C. 597, 625, 524 S.E.2d 623, 659
(1999).

“[T]he
voluntariness of a guilty plea is not determined by an examination of the
specific inquiry made by the sentencing judge alone, but is determined from
both the record made at the time of the entry of the guilty plea and the record
of the post-conviction hearing.” Harres v. Leeke, 282 S.C. 131, 133,
318 S.E.2d 360, 361 (1984). “When determining issues relating to guilty pleas,
this Court will consider the entire record, including the transcript of the
guilty pleas and the evidence presented at the PCR hearing.” Roddy, 339
S.C. at 33, 528 S.E.2d at 420. In considering an allegation on PCR that a guilty
plea was based on inaccurate advice of counsel, the transcript of the guilty
plea hearing will be considered to determine whether any possible error by
counsel was cured by the information conveyed at the plea hearing. Wolfe v.
State, 326 S.C. 158, 165, 485 S.E.2d 367, 370 (1997).

1. Ineffective
Assistance of Counsel

The
PCR court granted relief based solely on counsel’s failure to interview
witnesses. Despite Dalton’s statements to police and to DSS and his telling
appointed counsel his crack habit caused him to act out of character, Dalton
avers this failure forced him to plead guilty because it left him without any
defense.

At
the PCR hearing, Dalton maintained three witnesses could have helped his case:
Faith Dalton (Faith), his ex-wife and mother of Child B; Sonya Cowart, his
sister with whom he was living when charges were filed; and Tom Scruggs, his former
employer. Dalton’s attorney questioned him on the support these witnesses
could have provided.

Q:

And the question is, had he
contacted the witnesses what would he have learned that would have
helped your case?

A:

I don’t know, I’m not my
witnesses, I don’t know what they know. But I know that I was
going to use them as my witnesses.

Dalton gave only general statements about how the women
would have supported his case and he did not discuss Scruggs. He stated Faith,
the complainant on Child B’s incident report, lived with Child B and knew of her
“activities and veracity”; and his sister would have been a beneficial witness
because she had been around him and the child and knew of the child’s “activities.”

Dalton’s appointed counsel admitted Dalton had expressed
concern over the victim’s dress and manner of conduct both in his statement to
police and in their conversations. From the record, it appears this discussion
concerned Child A. Counsel reasoned this was inadmissible, not a defense to
having sex with a person under the age of sixteen, and possibly harmful to Dalton’s case. Given the substantial evidence against Dalton, counsel focused on reducing
the charges which carried a possible sentence of fifty-five years. Dalton’s PCR counsel only lightly addressed the witness issue when he asked appointed
counsel:

Q:

And did he ever provide you with the names of
potential defense witnesses?

A:

We talked about numerous witnesses. I
looked through my file, I didn’t have a list of thirty-three, but
there was a lot. But the thing about his witnesses were as the
witnesses testified in his statement and the victim’s statement they
both say they were the only ones there. He had no witnesses
who were going to say, “Well, I was there and it didn’t happen.”
All of his witnesses revolved around the fact that the girl
conducted herself in what they felt was in an inappropriate manner,
which is of no help and no use.

We
do not agree with the PCR court that Dalton established ineffective assistance
of his court appointed attorney. The transcript of the guilty plea clearly
refutes Dalton’s assertion that he believed he had a defense. At the PCR
hearing, he was unable to explain how he would have benefited from these
witnesses’ testimony. SeeJackson v. State, 329 S.C. 345,
353-54, S.E.2d 768, 772 (1998) (counsel not proven ineffective where
“respondent failed to present any evidence of what counsel would have
discovered or what other defenses respondent would have requested counsel
pursue had counsel more fully prepared for trial”); Moorehead v. State,
329 S.C. 329, 496 S.E.2d 415 (1998) (“failure to conduct an independent
investigation does not constitute ineffective assistance of counsel when the
allegation is supported only by mere speculation as to the result.”); seealsoGlover v. State, 318 S.C. 496, 458 S.E.2d 538 (1995)
(counsel not ineffective where witnesses’ testimony at PCR hearing not
favorable to applicant’s alibi defense).

The
plea colloquy record indicates Dalton was fully informed of his constitutional
rights, understood the charges, and was cognizant of the maximum sentences he
could receive. Specifically, Dalton told the plea judge he understood by
pleading guilty he would be waiving any possible defenses.

2. Prejudice

The
PCR court order articulated the speculative notion that had “witnesses” been
interviewed, “there is a reasonable probability that results of the proceedings
would be different.” In our view, Dalton failed to prove he was prejudiced by
the performance of his court appointed counsel.

Of
the three witnesses Dalton identified as potentially helpful at the PCR
hearing, only Faith testified. Faith and Dalton have four children together.
When the charges were filed, their three boys lived with Dalton and were placed
in foster care. At the PCR hearing, Faith Dalton testified:

Q:

Do you know—did you know
anything about any of the facts as far as the physical facts of what
may or may not have happened?

A:

No, sir.

Q:

Okay. Do you have any
knowledge concerning [Child B’s] truthfulness?

A:

Yes, sir.

Q:

Well, based on your having lived
with [Child B] and raised her, what is your opinion as to her
truthfulness?

A:

[Child B] is a very—until this
day is a very dramatic person. She does not tell full truths.
She can come up with a story off a limb and make you believe it.
She can cry at the drop of a dime. She has done this numerous
times throughout her life even as a small child. That is what
has made it hard for me to believe that what [Child B] has stated
against Richard Dalton, my ex-husband, is difficult to believe, not
only because of her inability to be truthful but also her demeanor
of how she handles situations. She is the type of child that
if she don’t want you to touch her she’s going to let you know,
she’s going to do something about it. If she doesn’t like what
you say she’s going to come to a defensive act, be it verbally or
physically.

…

Q:

You’re saying she’s not a shrink
in the wall flower [sic]?

A:

No, she’s not.

Q:

Now, things you just told me,
did you tell anyone in connection with the case about those?

A:

I didn’t speak to anybody on
Richard’s behalf, I spoke to DSS case workers and that was it. That is the only people that I
spoke to and they wouldn’t listen to anything I had to say.

…

Q:

Were you there when Mr. Dalton
pled?

A:

Yes, sir, I was.

Q:

Did the trial judge give you an
opportunity to say anything?

A:

The trial judge did, yes, sir.

Q:

Did you take that opportunity?

A:

No, sir.

Q:

Why not?

A:

Because the solicitor instructed
me not to say anything at the trial due to the fact that I was
fighting for custody of my children, and that if I said anything on
behalf of Richard Dalton that I would not regain custody of my three
boys, that they would remain in foster care.

Faith
further stated she could have testified to Dalton’s condition when he wrote the
statement. She explained that he had a drug problem and often didn’t remember
what he had done.[2]
However, on cross-examination, Faith admitted she was not present when Dalton gave his statement nor were they living together. From her testimony, the PCR judge
held she offered facts through which Child B could be impeached. He
additionally found the testimony contained “other aspects of the events leading
to the charges in a light substantially different from that presented by the
Solicitor.”

We
disagree and find no probative evidence in this testimony to support the PCR
judge’s findings, especially with the plea on the charge involving Child A. Cherry
v. State, 300 S.C. 115, 386 S.E.2d 624 (1989). Faith attended Dalton’s plea hearing but chose not to speak. Dalton’s testimony that his sister knew of Child
B’s activities did nothing to carry his burden. “This Court has repeatedly held a PCR applicant must
produce the testimony of a favorable witness or otherwise offer the testimony
in accordance with the rules of evidence at the PCR hearing in order to establish
prejudice from the witness’ failure to testify at trial.” Bannister v.
State, 333 S.C. 298, 303, 509 S.E.2d 807, 809 (1998); see, e.g., Pauling
v. State, 331 S.C. 606, 503 S.E.2d 468 (1998); Glover v. State, 318
S.C. 496, 458 S.E.2d 538 (1995); Underwood v. State, 309 S.C. 560, 425
S.E.2d 20 (1992); Jackson v. State, 329 S.C. 345, 495 S.E.2d 768
(1998). Mere speculation of what a witness’ testimony may be is insufficient
to satisfy the burden of showing prejudice in a petition for PCR. Porter v.
State, 368 S.C. 378, 386-87, 629 S.E.2d 353, 358 (2006) (holding no
evidence showed counsel’s failure to interview a potential witness would have
yielded a result different from that which defendant’s counsel believed at the
time of the plea; defendant pled guilty in light of the complete information
that was available at that time).

CONCLUSION

Although
this court generally affords great deference to the PCR court’s findings, in
this case we conclude the record is devoid of any probative evidence to support
Dalton’s post-conviction relief. Accordingly, we REVERSE the decision
of the PCR court and REINSTATE Dalton’s guilty plea and sentences.

KITTREDGE
and SHORT, JJ. concur.

[1] We decide this case without oral argument, pursuant
to Rule 215, SCACR.

[2] At the PCR hearing, Dalton testified he told
appointed counsel he was under the influence of cocaine when he gave his
statement to the police and that he did not remember writing it.